By Harini Amarasuriya
As I write this article, the Supreme Court determination on the Colombo Port City Economic Commission Bill has been made public. The SC has found 25 of the 74 clauses (almost 1/3rd of the Bill) to be inconsistent with the Constitution with 9 clauses requiring a referendum as well as special majority in parliament, unless amended. The Government has declared that it will make the proposed amendments at the Committee stage of the debate scheduled for 19 and 20 May. Opposition groups while cautiously welcoming the SC determination has asked for the debate to be postponed arguing that the public needs more time to consider this Bill and also that given the current COVID situation, the Port City Bill (as it is commonly known) should not be a priority. As things now stand, by the time this article goes to print, the most likely scenario is that the amended Bill would have been passed. Only a complete turnaround from the Government from its current position, heeding the many requests to delay the vote on the Bill, will stop this Bill being passed as things stand now.
There are some extremely important issues that we as citizens of this country need to make note of with regard to this Bill: most significantly, this Government has drafted a Bill that according to the SC determination, contains 25 clauses that are in violation of the Constitution. The constitutional clauses, the Bill violates are as follows:
- Article 12 (1): All persons are equal before the law and are entitled to the equal protection of the law.
- Article 14(1)g: Every citizen is entitled to the freedom to engage by himself or in association with others in any lawful occupation, profession, trade, business or enterprise.
- Article 76, read with Articles 3 and 4: Parliament shall have power to make laws, including laws having retrospective effect and repealing or amending any provision of the Constitution or adding any provision to the Constitution. Article 3: In the Republic of Sri Lanka sovereignty is in the People and is inalienable. Sovereignty includes the powers of government, fundamental rights and the franchise. Article 4 of the Constitution lays out how the Sovereignty of the People shall be exercised and enjoyed and describes the role of Parliament in exercising people’s sovereignty.
- Article 148: Parliament shall have full control over public finance. No tax, rate or any other levy shall be imposed by any local authority or any other public authority except by or under the authority of a law passed by Parliament or of any existing law.
What does this mean? This Government has thought it fit to draft legislation that violates two of the most important principles enshrined in our Constitution: equality of all before the law and exercising and enjoying our sovereignty as citizens. Let us not forget that the current President and Government came into power on campaigns built around the importance of ‘one country, one law’ and protecting the sovereignty of the people. While it was quite obvious that the ‘one country, one law’ slogan was a convenient cover for spewing racism, nevertheless, there were considerable expectations and enthusiasm built around these promises. However, it is not only the content of the Bill, but also the manner in which this Bill was placed before the people, that exposes the true intent of this regime.
The people of this country were effectively given only one day to challenge this Bill in court because the Government deliberately tabled it in Parliament just before the Sinhala and Tamil New Year holidays. The 20th Amendment to the Constitution reduced the period given to challenge a Bill from two weeks to one, signalling a limitation to a key method in which people could exercise their sovereign rights. This Government made sure that limited time was further reduced. Of the seven days that followed the tabling of this Bill, three days were public holidays and two were the weekend. If anyone wanted to challenge the Bill, they had to do so on the day after the Bill was made public (practically impossible) or just one other day after the New Year break. Lawyers representing the parties that challenged the Bill, worked frantically during the holidays, through auspicious times and family traditions in order to meet the deadline. Then, this entire drama is being performed during a time when public attention is distracted by the COVID epidemic. The debate is scheduled at a time when daily numbers of COVID deaths are increasing, as are infections. Public representatives are inundated by requests from anguished constituents seeking vaccinations and treatment. Public gatherings are not allowed and public discussions and engagement with this Bill are severely limited. The people of this country are in no mood for even thinking about such a Bill, even though it has huge implications for the country. Media too cannot give enough screen time to discuss the Bill in detail because the priority right now is survival. The timing of this Bill is obviously not accidental – the Government wants to get this through with minimum consultation and review. So in effect, this Government is stating loudly and clearly their complete lack of respect for constitutionally provided space to exercise people’s sovereignty as well as their utter contempt for broader democratic principles and values.
Why we need to seriously protest at this deliberate limiting of public engagement, review and discussion of this Bill is when we consider its content. While there are many problematic areas, I would like to focus on the development model being promoted through this Bill. The Port City is being touted by the Government as the answer to all of Sri Lanka’s economic woes and that somehow any delay in proceeding with it would irreparably damage Sri Lanka’s economy. The establishment of special economic zones is not new either in Sri Lanka or in the world. The Board of Investment was established in Sri Lanka for that very purpose and the free trade zones for example that are already functioning in the country, allow precisely that. There is also the Strategic Development Project Act, which was brought in to further provide for incentives and other measures to attract investments. The significant difference between these Acts and the proposed Bill is the role of the Parliament. While both those Acts must submit to the oversight of the parliament, the proposed Bill outlined an extremely powerful authority that would function with minimum parliamentary oversight. This was an aspect of the Bill, to which the SC took strong exception.
When presenting the Bill to Parliament on 19 May, Prime Minister Mahinda Rajapaksa stated that high quality health, educational and financial services were required in Sri Lanka to attract investors. He and others also pointed out to the delays, culture of corruption and inefficiency in the bureaucracy which impeded development. Now, there is no doubt that ALL of us would benefit from high quality health, educational and financial services, and an efficient, corruption free bureaucracy. Yet, this Government is not talking about providing these services for the people of this country: rather, the urgency is to ensure that these are in place for foreign investors. The irony of this would have been less cruel, had it not been said at a time when the citizens of this country are experiencing the deficiencies of our health care system (thanks to years of neglect by successive Governments) and when the lack of political leadership necessary for tackling a dangerous health crisis is being daily exposed.
Special economic zones, in the form of free trade zones, or financial cities are built on a premise that is fundamental to globalised financialised capitalism: deregulation. Such a model relies on market forces to provide necessary corrective measures and then assumes that the economic growth that will follow will ‘trickle down’ to different layers of society. This model has now been subject to severe criticism. It is also established now that this economic model exacerbates inequality between and within countries. Once again, the COVID crisis we are currently experiencing has exposed that inequality in the harshest of ways – in terms of vaccine inequality, access to care, and ability to cope with the restrictions imposed by the pandemic etc. Yet, ignoring all these lessons that this global health pandemic has been rubbing in our faces for the last one and a half years, this government is proceeding on a path that even by its own admission is meant to establish a zone, that by its very nature is exceptional and unequal. In doing so, it is also admitting to the failures of the last so many decades: the failure to put in place effective and efficient systems that work for people of Sri Lanka – whether in terms of the economy, health, education or administrative services.
This shows the extent to which this Government is out of touch and even more, simply insensitive to the needs of the vast majority of people in this country. No wonder it has no respect for people’s sovereignty: it simply does not care! This is not a Government of the people, for the people – this is a Government, with the intent of using its mandate and power to establish an oligarchy. It uses patriotism and racism as rhetorical devices to maintain its power base – but in my view, there is limited shelf-life for such tactics. What other means it will choose to remain in power is already evident – as the despicable strategies it chose to push through the Port City Bill which has such major implications for the country has shown us. This is the time for all of us to remain alert, critical and engaged however much this regime may try to stop us.